Order 1

Order Details: Notice of Motion
Pdf Text: :1: N.M. No.559/2018 in S.C. Suit No.4787/2007
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 559 OF 2018
CNR NO.: MHCC010021402018
IN
S. C. SUIT NO. 4787 OF 2007
IN
(HIGH COURT SUIT NO. 927 OF 2007)
Priyanka R. Dwivedi & another ...Plaintiff
Versus
Ramesh Parekh ...Defendant
Appearances:
Advocate Mr. D. Brijesh for the plaintiff.
Advocate Mr. Sameer R. Logade for defendant.
CORAM : HER HONOUR ADHOC JUDGE
SONALI P. AGARWAL
(C.R.NO.14)
DATED : 18th OCTOBER, 2019.
ORAL ORDER
Plaintiff has prayed by this Notice of Motion that he be appointed
as agent of the Court receiver of the Suit property that he be allowed to
use and occupy Suit property till final disposal of the present suit.
2. Plaintiff has stated that in Notice of Motion No.1252 of 2007 by
an Order dated 8th October, 2009, Court receiver was appointed for suit
premises with directions to the receiver to appoint an agent after
inviting the bids from third party for the agency.
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3. Plaintiff has further stated that he was always ready and willing
to perform his part of Agreement. Plaintiff has further stated that the
Court receiver was pleased to appoint a third party as an agent of the
suit premises on a monthly royalty of Rs.13,500/ and necessary
agreement was executed between the third party and the Court receiver
and the third party is in use and occupation of suit premises since 4th
November, 2010.
4. Plaintiff has further stated that the residential premises where he
is staying is undergoing for redevelopment and he would have no place
to reside and therefore, he require the suit premises to reside and for
the same he will deposit the entire balance amount of Agreement for
Sale before the Court. Plaintiff has prayed that he be appointed as an
agent of Court receiver and allow to use and occupy the suit premises.
5. Plaintiff has further stated that he is always ready and willing to
deposit the balance consideration amount in the Court and interest
earned on the deposit would be approximately the same which the third
party court receiver agent is depositing presently to receiver. Plaintiff
has further stated that he undertakes to vacate the suit premises
whenever there is an Order passed by the Court. Plaintiff has further
stated that the suit premises needs to be protected and it should earn
some revenue and the said conditions will be fulfilled if he deposit the
balance consideration in the Court. Plaintiff has further stated that he
will be taking proper care and maintain the suit premises as compare to
the third party and prayed to allow the Notice of Motion.
6. Defendant has filed reply to this Notice of Motion and stated that
the construction of flat was completed and was ready for occupation.
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The Hon'ble High Court has held that the plaintiff should not occupy
the property and the Court Receiver should obtained bids from third
party for the purpose of letting out the said flat and said flat should be
kept vacant and therefore it is contemplated that neither the plaintiff
nor the defendant should occupy the flat.
7. Defendant has further stated that until the suit is decided neither
the plaintiff nor the defendant should be allowed to occupy the flat and
therefore, the defendant opposes the relief prayed by the plaintiff.
Defendant has further stated that plaintiffs have committed breach of
the Schedule of the payment and denied to pay interest on delayed
payment and therefore, it is not true that he was willing to perform his
part of the contract. Defendant has further stated that plaintiff has
taken long time and delayed the payment, making it difficult for the
defendant to complete the construction of the building. Therefore, after
lapse of time, plaintiff was complying with the original terms of
Agreement and expected the defendant to waive interest or
compensation on the delayed payment.
8. Defendant has further stated that once the plaintiff gets
occupation of the flat, he will not vacate the same, the third party
should only be allowed to occupy the flat and pay the rent to the Court
receiver. Defendant has further stated that harm and prejudice would
be caused to the defendant because without timely payment the
plaintiff desires to occupy the flat.
9. Defendant has stated that pending the final decision of the suit
plaintiff should not be allowed to occupy the flat on one pretext or the
other and prayed to dismiss the Notice of Motion.
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:4: N.M. No.559/2018 in S.C. Suit No.4787/2007
10. It appears the suit is filed for specific performance of the contract
of Agreement to Sale. It appears as per Order dated 8th October, 2009
passed in Notice of Motion No.1252/2007, the Court Receiver, High
Court Bombay is appointed as receiver of suit flat. It appears as per the
contention the plaintiff himself, since 2010, the suit premises is given to
third party for use and occupation by the Court receiver and royalties
paid by said third party. Definitely, if plaintiff is appointed as an agent
of Court receiver or allowed to occupy the suit premises, it will change
the original position which existed at the time of filing of suit. At the
time of filing of suit plaintiff was not in possession of suit property.
Though plaintiff undertook to vacate the premises on getting its
possession, defendant has clearly apprehended that if possession is
given to plaintiff then he will not vacate the suit premises.
11. There are no sufficient circumstances to alter the position which
existed at the time of filing of suit that plaintiff was not in possession of
suit property. It appears, definitely plaintiff is given possession and it
may cause delay later in execution of any final decree passed in the suit,
then it will cause irreparable loss to defendant. Compare to this, if
plaintiff is not allowed, it will not cause any harm to suit property as
already suit property is given to third party on royalty. Therefore, there
are no reasonable grounds to appoint plaintiff as an agent of Court
receiver or to give possession of the suit property to him. Hence,
following order:
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:5: N.M. No.559/2018 in S.C. Suit No.4787/2007
ORDER
Notice of Motion No. 559 of 2018 stands rejected.
(SONALI P. AGARWAL)
Adhoc Judge,
Date: 18.10.2019. City Civil Court,
Gr. Bombay.
Dictated on : 18.10.2019
Transcribed on : 18.10.2019
Signed on : 18.10.2019
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:6: N.M. No.559/2018 in S.C. Suit No.4787/2007
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22.10.2019 At 01:06 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Sonali P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
18.10.2019
Judgment/Order signed by P.O. on 18.10.2019
Judgment/Order uploaded on 22.10.2019
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